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Prosecutorial Vindictiveness: Not Found Following Rejected Plea Offer; Search & Seizure Exclusionary Rule: Inapplicable to Private Search

State v. Troy L. Cameron, 2012 WI App 93 (recommended for publication); case activity

Prosecutorial Vindictiveness – Neither Presumptive or Actual for Increased Charges Following Rejected Plea Offer 

Cameron failed to establish prosecutorial vindictiveness in the filing of an amended information containing additional charges, after he rejected a plea offer to the original information. State v. Johnson, 2000 WI 12, 232 Wis. 2d 679, 605 N.W.2d 846 (mere filing of additional charges after failed plea negotiations doesn’t support presumption of vindictiveness, absence of which presumption requires proof of actual vindictiveness), discussed and applied.

¶16      The prosecutor testified at the motion hearing that she was not frustrated with Cameron’s refusal to plead and that she recognized he was entitled to a trial.  The second set of charges arose upon consideration of the then-completed DNA analysis and the forensic findings on the hard drive.  Prior to filing the second case, the prosecutor met with Cameron’s defense counsel and the detective who made the forensic findings for purposes of providing defense counsel with all of the additional evidence that could result in further charges.  They viewed over one hundred images of child pornography that had been accessed on the computer.  After a resolution still was not reached in the first case, the prosecutor began to talk to defense counsel about the likelihood of charging a second case because of the quantity of images.  The prosecutor testified that if she were to proceed to trial in the first case, she believed the quantity of downloaded images in the second set of charges would strengthen the original case.

¶17      Here, there is no suggestion that the additional charges were not supported by probable cause.  The filing of these charges, even though filed after Cameron decided not to plead, does not alone establish presumptive or actual vindictiveness.  Id., ¶55 (the prosecutor’s desire to obtain a guilty plea does not establish prosecutorial vindictiveness); Bordenkircher, 434 U.S. at 365 (additional charges did no more than present defendant “with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution” and did not violate due process rights); State v. Williams, 2004 WI App 56, ¶48, 270 Wis. 2d 761, 677 N.W.2d 691 (no actual vindictiveness where prosecutor threatens defendant with additional charges if he insisted on going to trial).

Nor did it matter that the State declined to prosecute a witness against Cameron for theft of Cameron’s car, after determining “that the charge ‘lacked prosecutive merit,’ and did not warrant the empaneling of a jury,” ¶19.

¶20      The trial court determined that vindictiveness had not been established in relation to the prosecutor’s decision not to file charges against Grana.  Further, the court found that, when taken in context, the prosecutor’s statements in the written plea negotiations and her testimony as to why she brought the second set of charges compelled the court to conclude that there was no prosecutorial vindictiveness.  Based on our review of the record, the trial court’s findings are supported by the testimony and we agree with its assessment that Cameron failed to establish vindictiveness.  The record reflects that the prosecutor’s decision to bring a second set of charges was based on an accumulation of evidence and her belief that this additional evidence would strengthen the State’s case on the original charges.  The decision not to charge Grana falls within the broad discretion of the prosecutor, see Johnson, 232 Wis. 2d 679, ¶16, and there is no indication that this discretion was erroneously exercised. In short, we agree with the trial court that there is no objective evidence that the prosecutor acted in order to punish Cameron for standing on his legal rights.  See id., ¶47.

(The court strongly suggests, albeit without holding, that actual vindictiveness can’t be supported by “a prosecutor’s charging decision as to an individual who is also a witness against the defendant,” ¶18 n. 4.)

Applicability of Exclusionary Rule: Private Search 

Cameron’s girlfriend (Grana) acted as a private individual, not a government agent, when she collected and gave to the police items of evidence. More particularly, because the three “private search” requirements of State v. Payano-Roman, 2006 WI 47, ¶18, 290 Wis. 2d 380, 714 N.W.2d 548, were met, any intrusion by Grana on Cameron’s privacy interests didn’t trigger fourth amendment protection. The question thus devolves to: “Did the police search exceed the scope of the private search so as to further frustrate the defendant’s expectation of privacy? See United States v. Jacobsen, 466 U.S. 109, 118-19 (1984),” ¶¶23-25.

¶28      We see very little, if anything, to distinguish Jacobsen from this case.  Whether or not Cameron had a legitimate expectation of privacy in his belongings in the basement closet, Grana (a private citizen) destroyed any expectation when she went through those belongings and discovered the child pornography.  After discovering and reviewing the child pornography, Grana placed it in the duffel bag.  As in Jacobsen, Grana, on her own accord, invited Boldus to her residence for the express purpose of viewing the contents of the duffel bag.  See Jacobsen, 466 U.S. at 119.  Boldus testified that he then took possession of the duffel bag when it was removed from Grana’s car.  Boldus’ subsequent search of the duffel bag did not exceed the scope of Grana’s search.  In keeping with Jacobsen, we conclude that there was no Fourth Amendment violation, and Cameron is not entitled to suppression of the evidence of child pornography found by Grana in their shared home and voluntarily turned over to law enforcement.[6]

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